86. On Causes Excusing from Restitution

1. A steward, who repeatedly stole many things, and indeed notably, from a rich master, since he cannot restore without inconvenience, is admonished by the confessor to seek condonation from the master. But the steward, hoping that the wife of the master would be kinder, approaches her and generally asks that if he has consumed anything from the things of the master for his own utility, she would be willing to condone it; and she willingly assents.

Q. 1. What are the causes excusing from restitution? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1459 seqq. — To the 2nd. Since the Case is instituted concerning a steward who, although he suffers inconvenience in making restitution, is nevertheless not unable, the whole reason which will be able to excuse him from the burden of restitution must be drawn from the validity of the condonation. But for this condonation to be valid, it is required that the person who condones the debt be of her own right, and have the faculty of giving, since the condonation of a debt is a certain species of donation, and so that she be owner of the thing which she intends to give. It is required besides that the remission be altogether free and voluntary, i.e., not violent, not extorted by fear and fraud; because fraud and fear, and whatever can bring some violence, removes the character of the free and voluntary.

Now in truth the first condition is lacking in the Case, because the steward stole many things, and indeed notably, from the master; but he did not obtain condonation from the master, but from his wife, who, not having ownership over those goods, did not have the right of condoning. The second condition also is lacking, because, if he did not extort this condonation by fraud and deceit, he nevertheless obtained it, although in good faith, from error and ignorance. For he did not manifest the true debt, but used that manner of speaking which would seem to insinuate that he was rather asking remission of those things which he could inadvertently have consumed with his family, than asking remission in the way fearful stewards are accustomed to ask. But this very thing ought to have been shown by the facility of the wife in remitting, which seemed to insinuate that she wished to exempt him rather from a scruple than from a grave debt. Cas. Consc. Bonon. Dioec. tom. 3, p. 116, year 1770, month of July, Case 3; I. M. 1460.

2. Petrus, a merchant, when his affairs were going badly, sought from his very rich brother Paulus as a loan the sum of 50,000 lire. Paulus, who loved his brother very much, willingly gave it; indeed, he sought no legal interest from it. Petrus trades with that money, and in the space of ten years recovers his whole patrimony. But Paulus, rejoicing over the prosperous affairs of his brother, never sought from him restitution of the money lent. Petrus dies first, and after a year Paulus dies. The son of Paulus, universal heir, then seeks from the sons of Petrus restitution of the said money; and, when he could obtain nothing, he has recourse to occult compensation.

Q. 1. What are the rights and obligations of heirs? — 2. What is occult compensation, and is it lawful? What is its distinction from legal compensation? — 3. What as to the Case?

R. To the 1st. As regards the rights of heirs, heirs succeed into the same rights of the testators. For they represent the person of the testator. But as regards obligations, as often as the testament was perfect and just, and not invalidated, the will of the deceased is most religiously to be guarded. That is to say, the wills of testators are like laws, from which it is lawful for the Prince alone to derogate for a just and necessary cause. Hence the heir is altogether held to fulfill legacies, whether pious or profane. Just; what if the work which the testator wished to be done is illicit? And if it is substantially illicit, e.g., for sustaining a Masonic sect, it will be as not written. But if it is illicit accidentally, e.g., for spectacles or public games which are prohibited in that city, it is unjust that this yield to the profit of the heirs, and therefore it must be converted to another work. — What if the will of the testator is irrational and useless? As an irrational and useless law is not to be observed, so also the irrational and useless will of the testator is not to be observed, e.g., if he ordered that he be buried in the most precious garments which he left. — Heirs are besides held to pay the debts of the deceased, namely those which really affect the inheritance accepted; and if there are several heirs, each one is held for that part by which he is heir, unless perhaps the testator, the legitimate portion of each being saved, ordered otherwise. Whence, if one afterward becomes unable to pay, the others are not burdened. But if the thing owed was some indivisible thing, say a watch, or if the obligation is hypothecary or solidary, then for these indeed he is held to the creditor who possesses the thing or things obligated as pledge, or whom the creditor chooses; but if he pays more than his own part, he reclaims from the co-heirs, and if one is not solvent, this yields to the damage of all. — D’Annib. p. 2. n. 348, 365, 396; I. M. 972, 978, 1052.

To the 2nd. Occult compensation is that by which a creditor, in order to recover that which is owed to him, subtracts something from his debtor, or does not return what he himself owes to him. No one doubts that it is lawful, provided that 1. it be done with justice preserved, and so it is necessary that something truly already be owed, and that this debt be altogether certain. 2. That it be done without anyone’s damage and injury, and so it must be done in the proper thing of the debtor, and one not liable to the right of another, and of the same kind, unless perhaps it cannot conveniently be done in a thing of this sort. For just as it is not lawful for the debtor to pay one thing for another, so also it is not lawful for the creditor to extort one thing for another. 3. That it be done from a just cause, namely if the creditor either cannot vindicate his thing in any way, or not except with grave inconvenience. But this, speaking per se, is slight, because only legal justice is inverted. — D’Annib. p. 2. n. 255; I. M. 1471 seqq.

Occult compensation is distinguished from legal compensation, which is the contribution of debt and credit with each other by the very power of law; and therefore by the law itself it removes or diminishes the debt, even if the creditor is unaware or unwilling, unless someone previously renounced compensation. But since this compensation is from the power of law, it has place only when the conditions of law have been verified. These are: 1. that each debt be of those things of which one can function in place of the other; 2. that each debt can equally be demanded; 3. that each debt is equally liquid, or can be liquidated immediately. — But compensation cannot be objected against one reclaiming a thing taken away from him by injury, or loaned for use, or deposited, or owed because of support, not liable to sequestration. — D’Annib. p. 2. n. 323; I. M. 966, 1471.

R. To the 3rd. The sons of Petrus seem to be held to nothing, and so the son of Paulus has recourse unjustly to occult compensation. For since the creditor, in the Case, was most closely joined by blood to the debtor, as a brother; since he first willingly gave the sum of money to his dearest brother placed in necessity, and sought no legal interest from it; nor did he ever desire it through very many years, even after the death of Petrus; and since, when Petrus had now recovered his own patrimony, when the occasion was very favorable for seeking back the money, Paulus expressed not a desire for his money, but only joy over the prosperity of his brother; it is altogether reasonably presumed either that Paulus in truth did not give that sum of money to Petrus as a loan, but simply gave it, or at least it is presumed that he remitted it. This is confirmed from L. Procula 26. de Probation. et Praesumption.: “Procula wished after the death of her brother to compensate, in an account with the heirs, a fideicommissum of a large quantity owed to her by her brother; but on the other side it was alleged that this had never been desired from the brother while he lived, since from various causes the account of Procula had often paid monies into the account of the brother. The Divine Commodus, when he took cognizance concerning that business, did not admit the compensation, as if the fideicommissum had tacitly been remitted to the brother.” — I. M. 1460.

3. Arnaldus several times and in vain sought from Marianus ten gold coins owed to him. Meanwhile the daughter of Arnaldus is received into the house of Marianus, that she may serve; and she, knowing the matter, approaches the confessor, asking whether she can satisfy the credit of her father by occult compensation from the goods of Marianus. The confessor responds that she can. — Does he respond rightly?

R. He would indeed have responded more rightly that she cannot. For the Doctors, permitting occult compensation, commonly speak of the creditor himself, not of another inserting himself into it. For the matter is full of danger, since the conditions for compensation are various, and the reasons of them depend very much upon the conscience of another. Casus Consc. Bonon. Dioec. tom. 4, p. 91, year 1779, month of December; I. M. 1473. But since there is question of the very daughter of Arnaldus, and of a case not very involved, as it is proposed, if the debt is truly certain, and its payment cannot otherwise be obtained, after the fact the confessor and the daughter of Arnaldus do not seem to be disturbed. For she did not usurp another’s thing, but that which will be proper to her father, which must be rendered to the father at once, lest perhaps the father himself compensate himself again. I. M. 1472, 1473.

4. Lucas, a servant, from mere inadvertence, and notwithstanding his habitual diligence, broke a precious crystal vessel. The master, knowing the matter, subtracted the stipend of the whole year from him. Lucas, able to effect nothing so that he might recover the stipend, compensates himself secretly. — By right?

R. Lucas does not seem to be disturbed. For on account of the broken crystal vessel he is held to nothing; and so he can compensate himself secretly, since he cannot do this in any other way. He is indeed not held to repairing that damage either from the sentence of a judge, or from the obligation of conscience. For the former was not present, and the latter is not present, all theological fault being lacking. I. M. 1358, 1472, 1473; G. 575.